Reminder on governor role

New Delhi, Jan. 2: The Supreme Court has overruled Narendra Modi's objections and upheld the appointment of the Lokayukta in Gujarat but reminded the governor that, barring exceptions, Raj Bhavan can act only on the aid and advice of the council of ministers.

The nomination of retired judge R.A. Mehta, whose selection was opposed by the chief minister for fear of bias, was cleared by the apex court largely on the conclusion that the opinion of the high court chief justice should be given primacy.

The top court did not mince words in expressing displeasure at governor Kamla Beniwal's claim that she could take independent decisions in making the appointment.

The two-judge bench of Justices B.S. Chauhan and Ibrahim Kalifullah termed the governor's view "unwarranted and logically insupportable".

"The governor's version of events, stated in her letter dated 3.3.2010, to the effect that she was not bound by the aid and advice of the council of ministers, and that she had the exclusive right to appoint the Lokayukta, is most certainly not in accordance with the spirit of the Constitution. It seems that this was an outcome of an improper legal advice and the opinion expressed is not in conformity with the rule of law. The view of the governor was unwarranted and logically insupportable," the Supreme Court said.

The court explained why Raj Bhavans needed to display extreme caution and said democracy could be in peril in the absence of restraint.

"It is evident that the governor enjoys complete immunity under Article 361(1) of the Constitution, and that under this, his actions cannot be challenged, for the reason that the governor acts only upon the aid and advice of the council of ministers. If this was not the case, democracy itself would be in peril," the court said.

The Supreme Court added: "The governor is not answerable to either the House of state, or to Parliament, or even to the council of ministers, and his acts cannot be subject to judicial review. In such a situation, unless he acts upon the aid and advice of the council of ministers, he will become all powerful and this is an anti-thesis to the concept of democracy."

However, the court's statement did not mean that the Modi government came out unscathed. On the contrary, the bench said "the facts of the case reveal a very sorry state of affairs" in Gujarat.

Independent institutions like the Lokayukta cannot have pliable appointees, the bench said. Giving primacy to the executive would amount to allowing the accused to appoint a judge of his own case.

The apex court said the Gujarat High Court chief justice had rightly gone through the consultation process involving the chief minister, the council of ministers and the governor and had forwarded the name of Mehta for the appointment after considering Modi's objections.

Modi had fiercely opposed the appointment of Mehta, a former judge of the high court, suggesting that he would be biased against the state government and, in effect, indicating that he was a UPA appointee. However, the governor and the chief justice had gone ahead with the decision to appoint Mehta as the Lokayukta, a post that has been lying vacant for more than nine years.

"The facts of the case reveal a very sorry state of affairs, revealing that in the state of Gujarat, the post of the Lokayukta has been lying vacant for a period of more than nine years…. A few half-hearted attempts were made to fill up the post but for one reason or another, the same could not be filled.

"The present governor has misjudged her role and has insisted, that under the (1986) act, the council of ministers has no role to play in the appointment of the Lokayukta, and that she could therefore, fill it up in consultation with the chief justice of Gujarat High Court and the leader of Opposition. Such attitude is not in conformity, or in consonance with the democratic set-up of government envisaged in our Constitution," the bench said in the judgment running into over 100 pages.

The apex court clarified that under the Constitution, "the governor is synonymous with the state government and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular act or under the exception(s), provided in the Constitution itself".

In the present case, the apex court said the governor was under an obligation to go by the aid and advice of the council of ministers, but the primacy of the choice was ultimately vested with the chief justice of the high court.

"The concept of primacy in such a situation has been included owing to the fact that the chief justice of the high court is the most appropriate person to judge the suitability of a retired judge, who will act as the Lokayukta, and the object of the act would not be served if the final decision is left to the executive," the Supreme Court said.

"The opinion of the chief justice would be entirely independent, and he would most certainly be in a position to determine who is the most suitable candidate for appointment to the said office.

"There are sufficient safeguards in the statute itself to take care of the pre-conceived notions in the mind or the bias of the Lokayukta," the court added.

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